Citation Nr: 1146730	
Decision Date: 12/22/11    Archive Date: 12/29/11

DOCKET NO.  09-46 975	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for hepatitis.  

2.  Entitlement to service connection for bilateral hearing loss.  

3.  Entitlement to service connection for hypertension as secondary to left shoulder disability.

4.  Entitlement to service connection for a psychiatric disability to include post-traumatic stress disorder (PTSD), dysthymic disorder, and major depression/depressive disorder.  

5.  Entitlement to an increased rating for arthritis of the left shoulder, currently rated as 30 percent disabling, to include entitlement to a total disability rating based on individual unemployability (TDIU).



REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARINGS ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to February 1971, and from February 2003 to June 2003.   

This matter comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA).  A July 2008 rating decision denied service connection for hepatitis C, PTSD, and hypertension.  The Veteran perfected an appeal as to all three issues.  In an October 2008 rating decision, the RO denied service connection for bilateral hearing loss and assigned a 30 percent rating for arthritis of the left shoulder as of January 1, 2009, following the period of a temporary total rating for that disability.  The Veteran also perfected an appeal as to those issues.  

In a March 2009 rating decision, in pertinent part, service connection for dysthymic disorder, claimed as depression was denied.  The Board notes that during the pendency of the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1, (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009).  Therefore, the issues of service connection for psychiatric disabilities have been combined. 

In June 2011, the Veteran testified at a Travel Board hearing before the undersigned.  At that time, he clarified that he was seeking secondary service connection for hypertension as due to left shoulder disability.

The issues of entitlement to service connection for a psychiatric disability to include PTSD, dysthymic disorder, and depressive disorder, as well as an increased rating for left shoulder, currently rated as 30 percent disabling, to include entitlement to a TDIU are  addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Hepatitis C is attributable to service.  

2.  Bilateral hearing loss is not attributable to service and was not first manifest within one year of separation from either period of service.

3.  Hypertension is not etiologically related to service-connected left shoulder disability.


CONCLUSIONS OF LAW

1.  Hepatitis C was incurred in active service.  38 U.S.C.A. §§ 1101, 1110, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011).

2.  Bilateral hearing loss was not incurred in or aggravated by active service and sensorineural hearing loss may not be presumed to have been incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2011).

3.  Hypertension is not proximately due to, the result of, or aggravated by the service-connected left shoulder disability.  38 U.S.C.A. § 1101 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.310(a) (2011).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide.  38 C.F.R. § 3.159(b).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the Veteran with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  RO letters dated May 2008, August 2008, February 2009, and March 2011 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above.  The letters also notified the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded, in compliance with Dingess.

Regarding the duty to assist, VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file.  The Veteran was also afforded VA examinations.  38 C.F.R. § 3.159(c)(4).  The examinations are adequate as the examiner reviewed the pertinent history, examined the Veteran, provided findings in sufficient detail, and provided rationale.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The records satisfy 38 C.F.R. § 3.326.  

With regard to claimed hypertension, a cardiovascular examination was performed, but a medical opinion was not obtained.  However, as the standards of the decision of the Court in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met, not further development is necessary.  Under McLendon, VA must provide a medical examination in a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the Veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  Id at 81. 

In this case, the Veteran claims that his hypertension is etiologically related to his service-connected left shoulder disorder or the medications taken for that disorder.  However, there is no indication that the hypertension may be associated with the Veteran's left shoulder disorder.  This matter is discussed in further detail below.  In light of these findings, the second and third prongs of McLendon have not been met.  Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA or the Court.

In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim."  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).


Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 494-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").  The Veteran is competent to report what the Veteran can observe and feel through the senses.  See Layno v. Brown, 6 Vet. App. 465 (1994).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau. 

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).  The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Competent lay evidence may establish the presence of observable symptomatology and, in certain circumstances, it may provide a basis for establishing service connection.  See Barr.  Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations.  Jandreau; see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).

Even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive.  Buchanan.  The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases.  Id at 1337.  The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence.  Id.  

Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).


Hepatitis C

The Board notes that a VA "Fast Letter" issued in June 2004 (Veterans Benefits Administration (VBA) Fast Letter 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). 

In Fast Letter 04-13, it is noted that "occupational exposure to HCV hepatitis C virus] may occur in the health care setting through accidental needle sticks.  A veteran may have been exposed to HCV during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran."  The Fast Letter indicates, in its Conclusion section, that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use.  See also VBA All Station Letter 211B (98-110) November 30, 1998; VBA Training Letter 211A (01-02) April 17, 2001 (major risk factors for hepatitis C include IV drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades).  VA has recognized that transmission of hepatitis C through jet injectors is "biologically plausible" and that it is essential that a report on which a determination of service connection is made include a discussion of all modes of transmission.  See VBA Fast Letter 04-13, June 29, 2004.

In this case, the Veteran contends that he has hepatitis C as a result of high risk factors that occurred during service, including high risk sexual activity and exposure to blood from injured persons.  Although the Veteran contends that the exposure to blood occurred in the combat setting, his DD Forms 214 on their own do not establish combat service.  The Veteran also admits using illicit drugs, but not through intravenous needles.  He states that cocaine use occurred during service.  He also admits getting tattoos after service.  

The Veteran does not contend nor does the record show that hepatitis C was manifest or diagnosed during service.  As early as 2004, VA outpatient records reflect that the Veteran had a positive hepatitis C antibody.  By 2005, he was diagnosed as having hepatitis C and has undergone treatment for that disorder since then to include Ribaviron and Pagasys treatment which he discontinued due to side effects such as chest pain and anemia.  

In order to resolve if his hepatitis C is related to service, the Veteran was afforded a VA examination in September 2009.  Such an assessment is complex in nature and required a professional medical opinion.  The VA examiner reviewed the claims file and the Veteran's risk factors.  His drug use (during service), tattoos (after service), sexual history (during service), and claimed exposure to blood (during service) were considered.  The examiner stated that combat activity producing minor abrasions in the presence of a blood environment increases the Veteran's chances of exposure (to hepatitis C).  In addition, other factors, such as an unprotected sexual encounter, intranasal cocaine use, and tattoos can each serve as factors in transition.  The examiner stated that the military combat exercise and the other aforementioned potential causes of exposure increase a probability of exposure.  

The Board notes that the VA examiner basically included all reported risk factors as causes of the Veteran's hepatitis C.  Since the examiner did not indicate that one cause was the sole etiology of the Veteran's diagnosis, the Board must accept that they all played a role.  In addition, the Veteran must be afforded the benefit of the doubt.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, service connection for hepatitis C is warranted.  


Bilateral Hearing Loss

Organic disease of the nervous system such as sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of the veteran's separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  Hearing loss disability is defined by regulation.  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

Since November 1, 1967, audiometric results have been reported in standards set forth by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  Service department audiometric charts dated after November 1, 1967 are presumed to be in ISO-ANSI units unless otherwise specified, while such charts in VA medical records dated after June 30, 1966, are similarly presumed to be in ISO-ANSI units.  

The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss."  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the veteran's service and his current disability.  The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R.§ 3.303(d).

The service treatment records reveal no ear disease or injury during service.  There were several audiograms.  

On the October 1968 entrance examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
-10
-5
-5
N/A
5
LEFT
-10
-10
-10
N/A
10

On the 1971 discharge examination, there were "X" markings in the right and left 500 Hertz and 8000 Hertz boxes, but no detailed findings.

On a 1979 examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
5
20
LEFT
10
10
10
15
15

On a September 2002 examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
25
20
10
10
LEFT
5
0
25
25
25

In 2003, the Veteran was called onto active duty; however, due to his left shoulder disability, he was released following a medical board proceeding.  There were no hearing tests.  

Thus, during service time, there is no record of hearing loss within the parameters of VA regulations.  

Post-service, VA outpatient records show that the Veteran made hearing complaints in April 2008.  He was subsequently ordered hearing aids.  

The Veteran contends that he was in combat and was exposed to acoustic trauma, including artillery noise.  As noted, combat service has not been established.  However, even accepting that the Veteran was in fact exposed to acoustic trauma during service, the matter of whether his current hearing loss is related to service required a complex medical assessment.  As such, the Veteran was afforded a VA examination in October 2008.  The VA examiner reviewed the claims file.  The Veteran reported a history of exposure to excessive noise during service including from artillery and gunfire.  On audiological examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
50
40
40
45
LEFT
25
25
45
50
50

The average in the right ear was 43.75 and in the left ear was 42.5.  The Maryland CNC word list speech recognition score was 56 percent in the right ear and 80 percent in the left ear.  Thus, this examination reflects hearing loss within VA's meaning.  

The examiner specifically reviewed the service hearing tests and considered the reports of the Veteran regarding noise exposure.  The examiner provided an opinion that the Veteran's current hearing loss was less likely as not caused by or a result of hazardous noise exposure in the military.  The examiner cited to the review of the military records, her personal experience, and her personal expertise.  She provided adequate rationale, explaining that the service treatment records which documented the Veteran's hearing thresholds in 1968, 1979, and 2002 reflected normal hearing thresholds.  

Although the Veteran has offered his own opinion that his hearing loss is service-related, the Board finds that he does not have the medical knowledge or expertise that is held by the VA examiner; thus, the Veteran's opinion is not as probative.  The VA examiner stated that current hearing loss is not related to service.  The Board attaches the most significant probative value to this opinion, as it is well reasoned, detailed, consistent with other evidence of record, and included review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.).  In addition, there is no record of hearing loss manifestations within the initial post-service year following either period of service.  

The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record.  Hensley v. Brown, 5 Vet. App. 155 (1993).  Health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis.  See Cohen v. Brown, 10 Vet. App. 128, 137 (1997).  Accordingly, service connection for bilateral hearing loss is not warranted.  

The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The preponderance is against the Veteran's claim, and it must be denied.


Secondary Service Connection for Hypertension

Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury.  Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994).  There must be competent evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995).

With regard to the matter of establishing service connection for a disability on a secondary basis, the Court has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Id.; see also 71 Fed. Reg. 52744-52747 (Sept. 7, 2006).

Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the Court's decision in Allen, which, as noted above, addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition.  See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006).  The existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c).  Under the revised section 3.310(b), the regulation provides that:

Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 

See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310(b) (2011)).

Although it was expected that the intended effect of the amendment was to conform VA regulations to the Allen decision, the regulatory amendment effectively resulted in a change in the law.  This analysis is not correct.  Rather, the overall intention of the amendment to 38 C.F.R. § 3.310(b) was to implement the Allen decision, the amended 38 C.F.R. § 3.310(b) clearly institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted.  In addressing the imposition of this new evidentiary requirement, the regulatory comments cite to 38 U.S.C. § 501 as the supporting authority, and not Allen.  See 71 Fed. Reg. 52,744-45 (Sept. 7, 2006).  

A review of the regulatory comments make clear that, ultimately, it is the Veteran's responsibility to support his or her claim by providing evidence of the baseline level of severity, and that it is not enough merely that an examiner concludes that there is "aggravation."  See 71 Fed. Reg. 52,745 (Sept. 7, 2006).  In sum, 38 C.F.R. § 3.310(b) appears to place substantive evidentiary restrictions on a veteran before aggravation may be conceded, and these restrictions appear to have no basis in the Allen decision itself.  

In this case, the Veteran's claim was filed after the effective date of the revised regulation (October 10, 2006).  As such, the Board finds that the new version of the regulation is to be applied.  

In order to establish service connection for a claimed disability on a secondary basis, there must be (1) competent evidence of a current disability; (2) a service-connected disability; and (3) competent evidence of a nexus between the service-connected disease or injury and the current disability.  See Wallin.  

Hypertensive blood pressure readings, according to VA's rating schedule, contemplate (at least) diastolic pressure of predominantly 100 or more or systolic pressure of predominantly 160 or more.  See 38 C.F.R. § 4.104, Diagnostic Code 7101.  

A review of the record shows that the diagnosis of hypertension was made in 2006.  Prior to that time, there were no readings elevated to the range noted above nor was hypertension diagnosed in the record by any medical professional nor did the Veteran report that it had been so diagnosed.  In September 2007, the Veteran was afforded a VA examination and the examiner noted that hypertension was diagnosed in the latter part of 2006.  

The Veteran maintains that his hypertension developed secondary to his left shoulder disorder and the medications that he takes for that disability, but he provides no support for his contentions.  The Federal Circuit has recognized that in some cases, lay testimony falls short in proving an issue that requires medical knowledge.  See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010).  While the Veteran is competent to observe the presence of certain symptoms, see Jandreau; Buchanan, the question of an etiological relationship between hypertension and an orthopedic disability and its medications requires a complex medical assessment, one requiring medical expertise that the Veteran has not been shown to possess.  Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert; Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  The Veteran's contentions regarding hypertension are unsupported and insufficient to warrant secondary service connection.  

The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The preponderance is against the Veteran's claim, and it must be denied.



ORDER

Service connection for hepatitis is granted.

Service connection for bilateral hearing loss is denied.

Service connection for hypertension as secondary to left shoulder disability is denied.  


REMAND

Unfortunately, a remand is required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.


Psychiatric Disability

The Veteran contends, as previously noted, that he served in combat.  His combat status affects his claim, particularly for service connection for PTSD.  Accordingly, an attempt should be made to verify if he had combat status.  

The Veteran has been diagnosed as having PTSD, dysthymic disorder (or dysthymia), and major depressive disorder/depression.  He contends that he has a psychiatric disability due to inservice stressors.  

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with §4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  See 38 C.F.R. § 3.304(f).  

The following provisions apply to claims for service connection of PTSD diagnosed during service or based on the specified type of claimed stressor:

(1) If the evidence establishes a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

(2) If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

(3) If a stressor claimed by the Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.

(4) If the evidence establishes that the Veteran was a prisoner-of-war under the provisions of §3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

(5) If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the veteran's account of the stressor incident.  Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy.  Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources.  Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes.  VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.

The Veteran contends that he saw injured persons, dead persons, had to stack and bury dead bodies, and came under enemy fire while in Vietnam.  He states that he was sent out on a field "recon" mission with 10-15 other soldiers.  They left from "Hawk Hill" and went to "L2 Baldy" and one of the men stepped on a mine and was killed.  Thereafter, the Vietcong opened fire and several were injured.  In addition, he contends that one Christmas Day, he was on bunker guard duty on Hawk Hill and was checking the perimeter when Vietcong attacked.  He said people were injured and killed and that they had to sort through the dead bodies to send soldiers' bodies back home.  He maintains that he did not work in a clerical position, as indicated on his DD Form 214, but worked on guard duty and drove trucks.  

In essence, the Veteran states that he witnessed war atrocities and feared for his life, to include from being exposed to incoming enemy gunfire.  

A review of the record also reflects that the AOJ determined that there was a lack of information to verify the Veteran's claimed stressor.  See September 28, 2009 Formal finding on a lack of information required to verify stressors in connection to the PTSD claim.  The Board finds, however, that the Veteran presents allegations of incoming gunfire and no attempt has been made to verify that stressor.  In addition, he has not been afforded a VA examination.  The Veteran should be afforded a VA psychiatric examination and 38 C.F.R. § 3.304(f)(3) should be considered in that regard as the record reflects diagnoses of PTSD in VA outpatient records.

Increased Rating for Left Shoulder Disability to include a TDIU

In a recent case, the Court held that if a claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then the issue of whether a TDIU as a result of that disability is warranted becomes part of the claim for an increased rating.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  That matter has been raised in this case. 

With regard to this increased rating claim, the Veteran indicates that he has been awarded Social Security Administration (SSA) benefits due to his left shoulder disability.  The record reflects that he has in fact been awarded these benefits.  The SSA records are not in the claims file.  VA has a statutory duty to obtain these records.  38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2).  The United States Court of Appeals for Veterans Claims (Court) has also held that VA has a duty to acquire both the SSA decision and the supporting medical records pertinent to a claim.  See Dixon v. Gober, 14 Vet. App. 168, 171 (2000); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992).  These records should be obtained on remand.  See also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). 

The Veteran contends that his left shoulder disability has worsened and he cannot work.  There are notations in the VA outpatient records that the Veteran is unable to work in his former occupation as a truck driver due to his left shoulder disability.  See, for example, May 25, 2011 VA outpatient record.  As the Veteran has asserted that his service-connected disability has worsened since his last examination, he should be afforded a new examination in compliance with VA's duty to assist.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).  A new VA examination is required to assess the current level of severity of the Veteran's service-connected left shoulder disability.  See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (where the United States Court of Appeals for Veterans Claims (the Court) determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); see, as well, VAOPGCPREC 11-95 (April 7, 1995); Green v. Derwinski, 1 Vet. App. 121 (1991).

In addition, since this case is being remanded, an updated VCAA letter should be sent to the Veteran and his current VA outpatient records from the Memphis VA Medical Center should be obtained.  

Accordingly, the case is REMANDED for the following action:

1.  Send an updated VCAA letter as to the issues of service connection for a psychiatric disability to include PTSD, dysthymic disorder, and major depression/depressive disorder, as well as an increased rating for left shoulder disorder and a TDIU. 

2.  Obtain and associate with the claims file copies of all clinical records, which are not already in the claims file, of the Veteran's treatment at the Memphis VA Medical Center.  

3.  Obtain from SSA a copy of their decision regarding the Veteran's claim for Social Security disability benefits, as well as the medical records relied upon in that decision.  

4.  Ask the Veteran to submit a more specific and detailed statement describing his alleged in-service stressors.  He should be informed that specific dates (within a 60 day window), locations, circumstances, and names of those involved in the reported incidents would prove helpful in attempting to verify his stressors.  

5.  Thereafter, an attempt should be made to verify whether the Veteran had combat service and to verify the Veteran's claimed stressors through the appropriate channels, to include JSRRC.  JSRRC should be provided with all pertinent information, to include copies of personnel records, unit of assignment, and stressor statements.  With regard to his stressors, the Veteran claims that his unit came under Vietcong attack at "Hawk Hill" and "Baldy LC," and there were injured and casualties. He also claims that his unit generally came under enemy fire and he had to perform perimeter guard duty.  Those stressors should be verified, if possible.  If they cannot be verified, the report should reflect that finding.

6.  After the foregoing development has been accomplished, schedule the Veteran for a VA psychiatric examination.  The claims file and a copy of this remand must be reviewed by the examiner.  The VA examiner should indicate in the report if the claims file was reviewed.  All necessary tests should be conducted and all clinical findings reported in detail.  

The examiner is requested to provide an opinion as to the diagnosis of all psychiatric disorders found to be present, including, if appropriate, PTSD.  

The examiner is asked to determine whether the Veteran has PTSD under the criteria as set forth in DSM- IV. 

The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any current psychiatric disorder, including PTSD, dysthymia, and major depression/depression had their clinical onset during active duty or is related to any in-service disease, injury, or event, to include any of the alleged stressor events.  The examiner must provide a comprehensive report including complete rationales for all conclusions reached.  

7.  Schedule the Veteran for a VA examination to determine the nature and extent of his service-connected left shoulder arthritis.  Any indicated tests should be accomplished.  The examiner should review the claims folder prior to examination.  

If pain or any other factor, including repetitive motion, limit motion at any point, that should be so indicated.  

The examiner should provide an opinion as to whether the Veteran's service-connected disabilities alone prevent him from engaging in a substantially gainful occupation.  

The opinion should address whether his service-connected disabilities are so disabling as to render him unemployable.  The Veteran's age and the effects of non-service-connected disabilities cannot be factors for consideration in making the determination.  All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  

8.  The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry.

9.  The AMC should then readjudicate the claims remaining on appeal in light of all of the evidence of record.  If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2011).



______________________________________________
TARA L. REYNOLDS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs